IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

RICHARD MATHEWS, et al., 

 Plaintiffs, 

 vs. Civil Action 2:12-cv-1033 

 Magistrate Judge King 

OHIO PUBLIC EMPLOYEES RETIREMENT 

SYSTEM, 

 Defendant. 

 OPINION AND ORDER

 This action arises out of the termination of the disability 

retirement benefits of plaintiff Richard Mathews. This matter is 

before the Court, with the consent of the parties pursuant to 28 

U.S.C. § 636(c), for consideration of two motions. Plaintiff1

 filed a 

motion for judgment on the pleadings on February 27, 2014. Motion for 

Judgment on the Pleadings (“Plaintiff’s Motion”), ECF 26. Defendant 

Ohio Public Employees Retirement System (“OPERS” or defendant) opposed 

that motion and also moved for summary judgment. Defendant’s Motion, 

ECF 32. Plaintiff filed a joint response to Defendant’s Motion and a 

renewed request for judgment on the pleadings, Plaintiff’s Response, 

ECF 36, and defendant filed a reply, Defendant’s Reply, ECF 37. 

Because the parties relied on evidence outside the pleadings in 

briefing Plaintiff’s Motion, the Court advised the parties that 

Plaintiff’s Motion would be treated as a motion for summary judgment 

and ordered the parties to supplement their briefing. Opinion and 

 

1

 Plaintiff Richard Mathews and his wife, Sandra Mathews, filed this action 

on November 8, 2012, asserting eight claims based on the termination of 

plaintiff Richard Mathews’ disability retirement benefits. Complaint, ECF 2. 

Upon defendant’s motion, ECF 4, Mrs. Mathews’ claims were dismissed. Opinion 

and Order, ECF 14. Unless otherwise specified, all references to “plaintiff” 

are to Richard Mathews. 

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Order, ECF 38. The parties have supplemented their briefing. 

Plaintiff’s Supplemental Brief, ECF 41; Defendant’s Supplemental 

Brief, ECF 42. This matter is now ripe for consideration. 

I. Background 

 The facts of this case are not in dispute. Plaintiff served as a 

police officer from 1969 until 1996, when he suffered a debilitating 

medical condition. Amended Complaint, ECF 23, ¶¶ 9-10. Plaintiff is 

a member of OPERS and began receiving disability benefits from OPERS 

on April 1, 1997. Ohio Public Employees Retirement System’s Answer to 

the Amended Complaint and Counterclaim (“Amended Answer”), ECF 39, ¶¶ 

2, 13. 

 Between 2000 and 2003, plaintiff reported to OPERS on several 

occasions that he was employed on a part-time or full-time basis, and 

OPERS continued to pay disability benefits. Amended Complaint, ¶¶ 16-

18; Amended Answer, ¶¶ 16-18; PAGEID 681-87, 733-37, 745-47, 750-52. 

In March 2001, plaintiff sought guidance from defendant about whether 

he could hold a public office and still receive OPERS disability 

benefits. Administrative Record, ECF 31, PAGEID 676. In a letter 

dated March 27, 2001, defendant responded as follows: “If a disability 

retirant should return to public service with a department, which is 

covered under the Public Employees Retirement System, we are required 

to suspend the disability benefits. A disability retiree may not be 

employed in any capacity for a PERS reporting employer.” Id. at 

PAGEID 675. The letter also states that plaintiff might, under 

certain circumstances, be employed by a private employer without 

jeopardizing his OPERS disability benefits. Id. However, plaintiff 

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avers that he never received this letter. Affidavit of Richard 

Mathews, ECF 36-3, ¶¶ 5-7. 

 In November 2009, plaintiff was elected to serve as a Council 

Person for the Village Council in the Village of New Richmond, Ohio, 

for the term January 2010 to December 2013. Amended Complaint, ¶ 20; 

Amended Answer, ¶ 20. Plaintiff alleges that, prior to embarking on 

service in this position, he conferred with the Village Administrator 

for the Village of New Richmond “and was assured that [he] could pay 

into Social Security, according to applicable R.C. § 144.05, as an 

elected official and would not be required to contribute to OPERS.” 

Amended Complaint, ¶ 21. Plaintiff does not argue that the Village 

Administrator for the Village of New Richmond is an agent of OPERS, 

and he does not contest defendant’s representation that the Village 

Administrator is not an agent of OPERS. See Defendant’s Motion, 

PAGEID 793-95. Plaintiff assumed office as a Council Person on 

January 1, 2010. Affidavit of Richard Mathews, ¶ 11. 

 In March 2011 and March 2012, plaintiff filed an annual report of 

earnings with OPERS showing his earned income as an elected official 

for the Village of New Richmond. Amended Complaint, ¶¶ 23-24; Amended 

Answer, ¶¶ 23-24; Administrative Record, PAGEID 413-16. On March 20, 

2012, OPERS notified plaintiff by telephone that his disability 

benefits would be terminated effective April 30, 2012, because of his 

election to and service for the New Richmond Village Council. Amended 

Complaint, ¶ 26; Amended Answer, ¶ 26; Administrative Record, PAGEID 

272-73; Affidavit of Richard Mathews, ¶ 15. An OPERS representative 

spoke with plaintiff or plaintiff’s counsel on the telephone at least 

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six times between March 21 and April 30, 2012, regarding the 

termination of plaintiff’s disability benefits. Affidavit of Jeremy 

Polley, ECF 32-2, ¶ 9; Affidavit of Allen Foster, ECF 32-1, ¶¶ 3, 9, 

Exhibits A, G. However, plaintiff did not receive written notice that 

his disability benefits would be terminated, Affidavit of Richard 

Mathews, ¶ 16, and he did not receive written notice regarding the 

availability of any procedure to appeal the termination of his 

disability benefits. Amended Answer, ¶ 37. Defendant “admits that it 

never provided Richard Mathews a formal opportunity to appeal the 

termination of his disability benefits.” Id. at ¶ 32. 

 Plaintiff applied for traditional pension plan retirement 

benefits on April 2, 2012. Administrative Record, PAGEID 369-65. 

Plaintiff’s disability benefits were terminated on April 30, 2012, 

Amended Answer, ¶ 2, and his traditional age and service retirement 

benefits became effective May 1, 2012.2

 Amended Complaint, ¶ 27; 

Affidavit of Jeremy Polley, ¶¶ 7-8. 

II. Standard 

The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides in pertinent part: “The court shall grant summary 

 

2

 The transition from disability benefits to age and service retirement 

benefits had significant consequences. Plaintiff elected to contribute to 

Social Security, rather than to OPERS, in January 2010 when he began work as 

a Council Person for the Village of New Richmond. Amended Complaint, ¶ 31. 

Had plaintiff contributed to OPERS, he would likely have been entitled, after 

two (2) years, to full service credit for the period during which he received 

disability benefits. See Defendant’s Motion, PAGEID 794-95. A March 2012 

projection of plaintiff’s retirement benefits estimated that plaintiff would 

be entitled to a monthly retirement benefit of §3,088.99 had he received that 

service credit and to $1,640.22 had he not. See Affidavit of Allen Foster, 

¶¶ 6-7, 26, Exhibits E, D, X. Plaintiff did not receive the service credit. 

Moreover, plaintiff must now pay for health insurance for himself and his 

wife. Plaintiff’s Response, p. 28. 

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judgment if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). Pursuant to Rule 56(a), summary 

judgment is appropriate if “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of 

law.” Id. In making this determination, the evidence “must be viewed 

in the light most favorable” to the non-moving party. Adickes v. S.H. 

Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie 

if the dispute about a material fact is genuine, “that is, if the 

evidence is such that a reasonable jury could return a verdict for the 

non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). However, summary judgment is appropriate if the opposing 

party “fails to make a showing sufficient to establish the existence 

of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986). The “mere existence of a scintilla of 

evidence in support of the [opposing party’s] position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the [opposing party].” Anderson, 477 U.S. at 252.

 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the 

nonmoving party who “must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting 

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Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no 

material facts exist, the non-moving party must do more than raise a 

metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

III. Discussion 

 The Amended Complaint asserts procedural due process claims under 

the Fourteenth Amendment to the United States Constitution and alleges 

that O.R.C. § 145.362 is unconstitutional on its face and as applied. 

Count II of the Amended Complaint alleges that plaintiff received 

inadequate notice that his disability benefits would be terminated and 

that “[t]here was a complete absence of written notice to Plaintiff[] 

of any procedure available to appeal Defendant’s termination of 

Plaintiff[’s] disability retirement and other benefits.” Amended 

Complaint, ¶ 42. Defendant’s alleged failure to provide written 

notice and opportunity to be heard “caus[ed] damage to Plaintiff[] in 

the form of the loss of Plaintiffs [sic] disability retirement and 

other benefits from May 2012, forward.” Id. at ¶ 43. Count IX of the 

Amended Complaint alleges that O.R.C. § 145.362 is unconstitutional on 

its face because it provides for the termination of disability 

benefits when a “disability recipient is restored to service by, or 

elected to an elective office with, an employer covered by [OPERS]” 

without “adequate notice and opportunity to be heard before the 

recipient’s disability benefit shall cease.” Amended Complaint, ¶ 71 

(emphasis and internal quotations omitted). Plaintiff alleges that 

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the lack of process afforded in O.R.C. § 145.362 has caused “the loss 

of full retirement benefits and other benefits from May 2012, 

forward.” Amended Complaint, ¶ 73. Plaintiff seeks an order 

declaring O.R.C. § 145.362 unconstitutional on its face and as 

applied. Amended Complaint, ¶ 72. 

 The standards governing facial challenges are different from 

those governing as-applied challenges. 

A court may hold a statute unconstitutional either because 

it is invalid “on its face” or because it is 

unconstitutional “as applied” to a particular set of 

circumstances. Each holding carries an important 

difference in terms of outcome: If a statute is 

unconstitutional as applied, the State may continue to 

enforce the statute in different circumstances where it is 

not unconstitutional, but if a statute is unconstitutional 

on its face, the State may not enforce the statute under 

any circumstances. Traditionally, a plaintiff's burden in 

an as-applied challenge is different from that in a facial 

challenge. In an as-applied challenge, “the plaintiff 

contends that application of the statute in the particular 

context in which he has acted, or in which he proposes to 

act, would be unconstitutional.” Ada v. Guam Soc'y of 

Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 

S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J., 

dissenting), denying cert. to 962 F.2d 1366 (9th Cir. 

1992). Therefore, the constitutional inquiry in an asapplied challenge is limited to the plaintiff's particular 

situation. In comparison, the Court explained in Salerno

that 

[a] facial challenge to a legislative Act is, of 

course, the most difficult challenge to mount 

successfully, since the challenger must establish 

that no set of circumstances exists under which the 

Act would be valid. The fact that [an Act] might 

operate unconstitutionally under some conceivable set 

of circumstances is insufficient to render it wholly 

invalid, since we have not recognized an 

“overbreadth” doctrine outside the limited context of 

the First Amendment. 

481 U.S. at 745, 107 S.Ct. at 2100. In other words, a 

facial challenge to a statute should fail if the statute 

has a constitutional application. 

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Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir. 

1997)(citing United States v. Salerno, 481 U.S. 739 (1987)). Courts 

tend to disfavor facial challenges. Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 450 (2008). It is therefore customary 

for courts to “address an as-applied challenge before a facial 

challenge because it generally will be more ‘efficient,’ because this 

sequencing decreases the odds that facial attacks will be addressed 

ʽunnecessarily’ and because this approach avoids encouraging 

‘gratuitous wholesale attacks upon state and federal laws.’” 

Connection Distrib. Co. v. Holder, 557 F.3d 321, 327-28 (6th Cir. 

2009) (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 

469, 484–85 (1989)). 

 This Court will therefore begin by addressing plaintiff’s asapplied challenge. 

The Due Process Clause of the Fourteenth Amendment to the United 

States Constitution “provides that certain substantive rights — life, 

liberty, and property — cannot be deprived except pursuant to 

constitutionally adequate procedures.” Cleveland Bd. of Educ. v. 

Loudermill, 470 U.S. 532, 541 (1985). In order to establish a 

procedural due process claim, a plaintiff must show that: (1) he 

possess an interest protected by the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution, (2) the state 

deprived him of that interest, and (3) “the state did not afford [him] 

adequate procedural rights prior to” that deprivation. Hahn v. Star 

Bank, 190 F.3d 708, 716 (6th Cir. 1999) (citing Zinermon v. Burch, 494 

U.S. 113, 125-26 (1990)). 

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 Whether there exists a constitutionally protected interest is the 

threshold determination in any procedural due process claim. Howard 

v. Grinage, 82 F.3d 1343, 1349-50 (6th Cir. 1996). Whether a person 

possesses a constitutionally protected property interest is 

traditionally a question of state law. See Logan v. Zimmerman Brush 

Co., 455 U.S. 422, 430 (1982). “Property interests, of course, are 

not created by the Constitution. Rather, they are created and their 

dimensions are defined by existing rules or understandings that stem 

from an independent source such as state law - rules or understandings 

that secure certain benefits and that support claims of entitlement to 

those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 

564, 577 (1972). “The due process clause protects only those 

interests to which one has a ‘legitimate claim of entitlement.’” 600 

Marshall Entm’t Concepts, LLC v. City of Memphis, 705 F.3d 576, 588 

(6th Cir. 2013) (quoting Hamilton v. Myers, 281 F.3d 520, 529 (6th 

Cir. 2002)). “A statute creates a protected property interest when it 

‘both confers [a] benefit and limits the discretion of the 

[government] to rescind the benefit.’” Am. Premier Underwriters, Inc. 

v. Nat’l R.R. Passenger Corp., 709 F.3d 584, 594 (6th Cir. 2013) 

(quoting Med Corp., Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir. 

2002)). 

 The parties disagree whether plaintiff possessed a 

constitutionally protected property interest in continued disability 

benefits after he became an elected official. Plaintiff argues that a 

legitimate, continuing claim of entitlement to disability benefits was 

established when he was approved for disability benefits. Plaintiff’s 

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Response, p. 11. Defendant argues that, “[p]ursuant to O.R.C. § 

145.362, Mathews does not have a protected property interest in 

receiving disability benefits while serving as an elected official.” 

Defendant’s Motion, PAGEID 808 (emphasis in original). The Court 

previously addressed these arguments and concluded as follows: 

OPERS provides disability coverage to its members and pays 

benefits upon the determination by its retirement board 

that a member qualifies for a disability benefit. See

O.R.C. § 145.35. The government cannot thereafter suspend 

or terminate disability benefits without complying with § 

145.362. A legitimate claim of entitlement to OPERS 

disability benefits is therefore established by the award 

of benefits. See Mathews v. Eldridge, 424 U.S. 319, 332 

(1976) (“[T]he interest of an individual in continued 

receipt of [Social Security disability benefits] is a 

statutorily created ‘property’ interest protected by the 

Fifth Amendment.”); Am. Premier Underwriters, Inc., 2013 WL 

791410 at *10 (“Grants of . . . disability benefits . . . 

have [] sufficed to meet the ‘benefit conferral’ 

requirement.”); EJS Props., LLC v. City of Toledo, 698 F.3d 

845, 856-57 (6th Cir. 2012) (there is no property interest 

if the government has the discretion to rescind the benefit 

entirely). 

Opinion and Order, ECF 14, p. 10. Defendant disagrees with that 

conclusion and argues “that the Court’s previous examination was at 

too general a level.” Defendant’s Motion, PAGEID 808. According to 

defendant, O.R.C. § 145.362 does not limit defendant’s “discretion to 

rescind or terminate Mathews’ disability benefits, but plainly 

provides that Mathews is no longer eligible for disability benefits.” 

Id. at p. 27. “[A] prerequisite for Mathews’ continued receipt of 

disability benefits,” defendant argues, “is that he not return to 

public service as an elected official. Having done so, Mathews does 

not have a legitimate claim of entitlement to continued disability 

benefits.” Id. (emphasis omitted). Defendant cites to Banks v. 

Block, 700 F.2d 292 (6th Cir. 1983), and argues that “the property 

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interest conferred by O.R.C. 145.362 is limited in nature.” 

Defendant’s Motion, PAGEID 809. 

 The plaintiffs in Banks asserted due process claims under the 

Fifth and Fourteenth Amendments because their food stamps had been 

terminated prior to a “fair hearing.” Banks, 700 F.2d at 293-95. The 

United States Court of Appeals for the Sixth Circuit noted that food 

stamps were awarded for a predetermined certification period, that 

benefits automatically ceased at the end of the period, and that 

people seeking re-certification were treated like first-time 

applicants. Id. at 295. The Court of Appeals also cited legislative 

history noting that the food stamp program “is not a program of 

permanent or continuing eligibility subject to periodic review,” but 

rather, “is a program of distinct and separate entitlements known as 

certification periods, which limit participation in the program.” Id. 

at 297. The court held that food-stamp recipients therefore are 

possessed of a limited property interest “for one certification period 

and one certification period only.” Id. 

 This Court concludes that Banks is inapposite. Unlike the 

plaintiffs in Banks, recipients of OPERS disability benefits are not 

awarded benefits for a uniform, predetermined period of time. 

Although OPERS disability benefits recipients are required to undergo 

an annual medical examination, see O.R.C. § 145.362, benefits are not 

awarded in one year increments and the process of undergoing an annual 

medical examination is not tantamount to reapplying for disability 

benefits. Accordingly, unlike the food stamp program at issue in 

Banks, OPERS’ disability system is a program of continuing eligibility 

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subject to periodic review. Cf. Banks, 700 F.2d at 297 (“The food 

stamp program is not a program of permanent or continuing eligibility 

subject to periodic review.”). Accordingly, this Court rejects 

defendant’s renewed argument that the OPERS disability benefits 

program confers only a limited property interest in disability 

benefits subject to the recipient not returning to public service; 

this Court instead reaffirms its earlier holding that a legitimate 

claim of entitlement to continuing OPERS disability benefits is 

established by the award of benefits. 

 Having determined that plaintiff is possessed of a 

constitutionally protected property interest in his continued 

disability benefits, the Court must now determine exactly what 

procedures are due in connection with the protection of that interest. 

In making this determination, the Court must consider three factors: 

First, the private interest that will be affected by the 

official action; second, the risk of an erroneous 

deprivation of such interest through the procedures used, 

and the probable value, if any, of additional or substitute 

procedural safeguards; and finally, the Government's 

interest, including the function involved and the fiscal 

and administrative burdens that the additional or 

substitute procedural requirement would entail. 

Mathews, 424 U.S. at 335. “The United States Supreme Court has 

consistently held that some form of a hearing is required prior to an 

individual being finally deprived of a property interest.” Chernin v. 

Welchans, 844 F.2d 322, 325 (6th Cir. 1988) (citing Wolff v. 

McDonnell, 418 U.S. 539, 557–58 (1974)). “The requisite hearing must 

be ‘at a meaningful time and in a meaningful manner.’” Id. (quoting 

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 

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 Plaintiff was elected to serve as a Council Person for the 

Village of New Richmond, Ohio, and took office on January 1, 2010. 

Amended Complaint, ¶ 20; Affidavit of Richard Mathews, ¶ 11. 

Plaintiff filed an annual report with OPERS in March 2011 and March 

2012, showing earned income as an elected official for the Village of 

New Richmond. Amended Complaint, ¶¶ 23-24; Amended Answer, ¶¶ 23-24; 

Administrative Record, PAGEID 413-16. On March 20, 2012, OPERS 

notified plaintiff by telephone that his disability benefits would be 

terminated effective April 30, 2012, because of his election to and 

service for the New Richmond Village Council. Amended Complaint, ¶ 

26; Amended Answer, ¶ 26; Administrative Record, PAGEID 272-73; 

Affidavit of Richard Mathews, ¶ 15. An OPERS representative spoke 

with plaintiff or his counsel on the telephone at least six times 

between March 21 and April 30, 2012, regarding the termination of 

plaintiff’s disability benefits. Affidavit of Jeremy Polley, ECF 32-

2, ¶ 9; Affidavit of Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G. 

Section 145.362 of the Ohio Revised Code provides that a 

“recipient’s disability benefit shall cease” if the “disability 

benefit recipient is restored to service by, or elected to an elective 

office with, an employer covered by [OPERS].” O.R.C. § 145.362. 

OPERS’ board has been granted the authority to adopt rules for the 

proper administration and management of the public employees 

retirement system. O.R.C. § 145.09. The parties agree, however, that 

the procedures for providing written notice upon the termination of 

disability benefits and to appeal a decision terminating disability 

benefits do not apply where, as here, benefits were terminated as the 

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result of the election of a disability benefit recipient to an 

elective office covered by OPERS. Defendant’s Motion, PAGEID 810-13; 

Plaintiff’s Response, pp. 14-25. See also O.R.C. § 145.362. 

Moreover, defendant concedes that there is no “formal appeal process 

in return to public service situations.” Defendant’s Motion, PAGEID 

820. Defendant argues, however, that “nothing in O.R.C. 145.362 

prevents such a process” and “there is nothing to prevent the OPERS 

board from enacting an administrative rule that provides additional 

process in ‘return to public service’ situations.” Defendant’s 

Motion, PAGEID 820 (emphasis in original). Defendant also argues that 

the availability of post-deprivation mandamus relief offered plaintiff 

an adequate opportunity to be heard. Defendant’s Motion, PAGEID 807. 

 The parties have only briefly addressed the private and public 

interests presented by the issues in this case. Although defendant 

argues that plaintiff’s interest in his disability benefits is less 

significant than other potential interests, defendant seems to concede 

that plaintiff has a substantial interest in continued disability 

benefits. See Defendant’s Motion, PAGEID 803-04. Indeed, courts 

“have recognized the severity of depriving someone of the means of his 

livelihood, they have also emphasized that in determining what process 

is due, account must be taken of ‘the length’ and ‘finality of the 

deprivation.’” Gilbert v. Homar, 520 U.S. 924, 932 (1997) (emphasis 

in original; internal citations omitted). Plaintiff’s interest in the 

uninterrupted receipt of benefits is significant, and termination of 

plaintiff’s benefits caused a permanent deprivation of that interest. 

The Court notes, however, that the risk of depriving someone of the 

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means of his livelihood is lessened in a “return to service” case, 

where disability benefits are terminated because the benefit recipient 

returned to work. Similarly, the government has a significant 

interest in avoiding overpayments to disability benefits recipients 

and in avoiding the administrative burdens of trying to recoup any 

overpayment of benefits. See O.R.C. § 145.563. The government also 

has an interest in avoiding the administrative burdens associated with 

holding a pre-deprivation hearing. 

 The parties disagree whether plaintiff was entitled to a pretermination hearing. Defendant cites to Codd v. Velger, 429 U.S. 624 

(1977), among other cases, and argues that “[p]rocedural due process 

does not require a pre-termination hearing if the plaintiff fails to 

allege any factual dispute or issue that could be served by a hearing. 

This is particularly true if the matter involves the straightforward 

application of a statute or rule.” Defendant’s Motion, PAGEID 800. 

 Plaintiff argues that Codd is inapplicable to the facts of this 

case because plaintiff “was not afforded any forum in which to dispute 

his claim.” Plaintiff’s Response, p. 15 (emphasis omitted). 

Plaintiff also notes that Codd involved a liberty interest, rather 

than a property interest, and merely established a due process 

framework in stigmatization cases where the aggrieved party is 

afforded an opportunity to clear his name. Id. 

 In Codd, the United States Supreme Court considered whether the 

government was required to hold a hearing for a probationary police 

officer before placing a “stigmatizing” report in the officer’s 

personnel file indicating that he had attempted suicide by putting a 

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gun to his head. Id. at 626. The Supreme Court held that the 

officer’s due process claim failed because he did not dispute the 

truth of the facts stated in the report. Id. at 627–28. In a stigma 

case, the Supreme Court explained, the Due Process Clause requires a 

hearing only to provide an opportunity for the public employee to 

clear his or her name. Id. at 627. The government was therefore not 

required to hold a hearing when the employee did not dispute the truth 

of the allegedly stigmatizing statement. Id. at 627–28. The Supreme 

Court distinguished this type of single-purpose factual hearing from a 

parole revocation hearing, which has two purposes: to adjudicate facts 

and to determine whether, on the basis of those facts, a certain 

consequence should follow. See id. at 627 (citing Morrissey v. 

Brewer, 408 U.S. 471, 479–80 (1972)). In a parole revocation hearing, 

“[t]he fact that there was no dispute with respect to the commission 

of the act would not necessarily obviate the need for a hearing on the 

issue of whether the commission of the act warranted the revocation of 

parole.” Id. “Codd thus makes clear that the Due Process Clause may 

require a hearing when there is no factual dispute if the decisionmaker has discretion to determine the consequences of the undisputed 

facts.” Anderson v. Recore, 446 F.3d 324, 331 (2d Cir. 2006). 

 Although plaintiff “cannot speculate what form of hearing he 

seeks,” Plaintiff’s Supplemental Brief, p. 9 (internal quotations 

omitted), the facts of this case do not lend themselves to more than a 

single-purpose factual hearing. Plaintiff’s disability benefits were 

terminated pursuant to O.R.C. § 145.362, which provides: “If a 

disability benefit recipient is restored to service by, or elected to 

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an elective office with, an employer covered by [OPERS], the 

recipient's disability benefit shall cease.” Plaintiff does not 

dispute, nor has he ever disputed, that he was an OPERS disability 

benefits recipient or that he was elected to an elective office with 

an employer covered by OPERS. In fact, the termination of plaintiff’s 

disability benefits was predicated on his report of this information 

to OPERS. Under these circumstances, Ohio law required the 

termination of plaintiff’s disability benefits and OPERS had no 

discretion to do otherwise. See O.R.C. § 145.362; O.A.C. § 145-2-23 

(“The termination of a disability benefit due to the disability 

benefit recipient being restored to service as provided in section 

145.362 of the Revised Code and rule 145-2-22 of the Administrative 

Code is not subject to the discretion of nor appeal to the retirement 

board.”). As was the case in Codd, no pre-determination hearing was 

necessary because there were no factual disputes and OPERS had no 

discretion in determining the consequences of those undisputed facts. 

See Codd, 429 U.S. at 627-28. Under these circumstances, there was 

little risk of erroneous deprivation and the probable value of 

additional or substitute procedural safeguards would have been 

negligible. See Gilbert, 520 U.S. at 933 (suggesting that there would 

be no need for any pre-suspension process where suspension was 

mandatory upon being charged with a felony, and “there would be 

nothing to consider at the hearing except the independently verifiable 

fact of whether an employee had indeed been formally charged with a 

felony”). 

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 The facts of this case are also analogous to those presented in 

the Third Circuit’s recent decision in Loscombe v. City of Scranton, 

___ Fed. App’x ____, No. 13-4579, 2015 WL 348055 (3d Cir. Jan. 28, 

2015). The plaintiff in Loscombe, a fire captain, received a 

disability retirement pension from the City of Scranton after he was 

forced to retire due to injuries sustained in a work-related accident. 

Id. at *1. When the plaintiff subsequently accepted an offer to 

serve as a member of the Scranton City Council, his pension was 

automatically suspended in accordance with a city ordinance that 

provided: “When any fireman is pensioned and thereafter enters the 

service of the City in any capacity with compensation the pension of 

such person shall be suspended during his term of service. Upon 

termination of such compensated service the pension payments shall be 

resumed on request of the pensioner.” Id. The plaintiff filed suit, 

claiming, inter alia, that the failure to provide a pre-suspension 

hearing violated the Fourteenth Amendment Due Process Clause. The 

Third Circuit assumed, for purposes of argument, that the plaintiff 

was possessed of a property right in his disability pension benefits, 

but nevertheless affirmed the district court’s dismissal of the due 

process claims and concluded that a pre-suspension hearing was not 

constitutionally required: 

We have concluded on prior occasions that “a pretermination hearing was not required when there was no 

underlying factual dispute to be hashed out in the 

hearing.” Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 

2000) (citing Codd v. Velger, 429 U.S. 624, 627–28 (1977)). 

Given that the suspension of Appellant's pension was based 

on the Appellees' statutory reading and there was no 

factual dispute to resolve, Appellant cannot demonstrate a 

violation of his procedural due process rights due to a 

lack of a hearing. 

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Loscombe, 2015 WL 348055 at *4. This Court finds Loscombe persuasive. 

As discussed supra, there is no factual dispute about whether 

plaintiff was elected to an elective office with an employer covered 

by OPERS, and OPERS had no discretion in applying O.R.C. § 145.362 to 

the undisputed facts. Accordingly, when balancing the factors, this 

Court concludes that defendant was not required to provide a predeprivation hearing in this case. 

 As to the post-deprivation process afforded plaintiff, defendant 

concedes that there is no “formal appeal process in return to public 

service situations,” Defendant’s Motion, PAGEID 820, and defendant 

“admits that it never provided Richard Mathews a formal opportunity to 

appeal the termination of his disability benefits.” Amended Answer, ¶ 

32. The parties agree that there is no administrative process to 

appeal a decision terminating benefits in a return to service case. 

The parties also agree that plaintiff could have filed a mandamus 

proceeding in state court to challenge the termination of his 

disability benefits. However, the parties disagree whether a state 

court mandamus proceeding provides plaintiff an adequate opportunity 

to be heard. 

 “Mandamus is an appropriate remedy where no statutory right of 

appeal is available to correct an abuse of discretion by an 

administrative body.” State ex rel. Cydrus v. Ohio Pub. Emps. Ret. 

Sys., 127 Ohio St. 3d 257, 260 (2010) (alteration and internal 

quotations omitted). “The termination of a disability benefit due to 

the disability benefit recipient being restored to service as provided 

in section 145.362 of the Revised Code and rule 145-2-22 of the 

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Administrative Code is not subject to the discretion of nor appeal to 

the retirement board.” O.A.C. § 145-2-23. “Because there is no right 

to appeal . . . , mandamus is an appropriate remedy.” State ex rel. 

Cydrus, 127 Ohio St. 3d at 260. See also State ex rel. Lowe v. Ohio 

Pub. Emps. Ret. Sys., No. 13AP-627, 2014 WL 5460448 (Ohio Ct. App. 

Oct. 28, 2014). 

 Plaintiff argues “that a state court mandamus action does not and 

cannot constitute a proper post-deprivation hearing as success derived 

from such an action would leave Mathews in exactly the same position 

he currently stands.” Plaintiff’s Supplemental Brief, p. 8. 

Plaintiff argues that a “mandamus action would not cure the underlying 

unconstitutionality of [O.R.C. § 145.362]” because the statute “is 

devoid of any provisions for Due Process when terminating a 

recipient’s disability benefits.” Id. at p. 7. Plaintiff’s arguments 

are not well taken. 

 As noted supra, Ohio law offers mandamus as “an appropriate 

remedy where no statutory right of appeal is available to correct an 

abuse of discretion by an administrative body.” State ex rel. Cydrus, 

127 Ohio St. 3d at 260. Accord State ex rel. Pipoly v. State Teachers 

Ret. Sys., 95 Ohio St. 3d 327, 330 (2002) (citing State ex rel. Alben 

v. State Emp. Relations Bd., 76 Ohio St. 3d 133, 135 (1996)). In this 

context, “[t]he term ʽabuse of discretion’ means an unreasonable, 

arbitrary, or unconscionable decision.” Id. (quoting State ex rel. 

Elsass v. Shelby Cnty. Bd. of Commrs., 92 Ohio St. 3d 529, 533 

(2001)). Plaintiff could have filed a mandamus action to challenge 

the termination of his disability benefits. See State ex rel. Garrett 

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v. Ohio Pub. Emps. Ret. Sys., No. 11AP-1020, 2012 WL 4502951 (Ohio Ct. 

App. Sept. 28, 2012). If defendant’s determination that plaintiff had 

been elected to an elective office with an employer covered by OPERS 

were determined to be incorrect or unreasonable, then plaintiff’s 

disability benefits could have been reinstated through that 

proceeding. See O.R.C. § 2731.01 (“Mandamus is a writ, issued in the 

name of the state to an inferior tribunal, a corporation, board, or 

person, commanding the performance of an act which the law specially 

enjoins as a duty resulting from an office, trust, or station.”). 

Plaintiff therefore had an adequate state remedy to redress the 

termination of his disability benefits. The fact that plaintiff very 

likely would not have prevailed in a mandamus action, see e.g.,

Plaintiff’s Motion, PAGEID 237 (“[M]andamus (state court) would 

constitute a folly because under such pursuit the state court would 

simply be asked to enforce the statute as written . . . .”), has no 

bearing on whether a mandamus action is an adequate state remedy for 

the redress of his alleged wrong. See Jackson v. City of Columbus, 

194 F.3d 737, 751 (6th Cir. 1999) (affirming the district court’s 

dismissal of procedural due process claims because a mandamus action 

was an adequate state remedy) abrogated on other grounds by

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 

 The parties also disagree whether the notice provided by 

defendant comports with the requirements of due process. The Amended 

Complaint alleges that plaintiff received inadequate notice that his 

disability benefits would be terminated and that “[t]here was a 

complete absence of written notice to Plaintiffs of any procedure 

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available to appeal Defendant’s termination of Plaintiff’s disability 

retirement and other benefits.” Amended Complaint, ¶ 42. Plaintiff 

previously argued that defendant’s alleged failure in this regard was 

in violation of O.A.C. § 145-2-23. Plaintiffs’ Memorandum in 

Opposition to Defendant’s Motion to Dismiss, ECF 8, PAGEID 56, 64; 

Plaintiff’s Motion, PAGEID 235. Plaintiff now concedes that the 

procedures in O.A.C. § 145-2-23 for providing written notice upon the 

termination of disability benefits and to appeal a decision 

terminating disability benefits do not apply where, as here, benefits 

are terminated due to the disability benefit recipient being restored 

to service by, or elected to an elective office with, an employer 

covered by OPERS. Defendant’s Motion, PAGEID 810-13. Plaintiff 

argues that he did not receive adequate notice that his disability 

benefits would be terminated because “OPERS did not provide Mathews 

with: (1) adequate notice of any impending deprivation of a secured 

property interest, and (2) nor did OPERS’ communication to Mathews 

provide adequate notice of any pre-deprivation or post-deprivation 

hearing as required under the Fourteenth Amendment.” Plaintiff’s 

Supplemental Brief, pp. 4-5. 

 “[P]rior to an action which will affect an interest in life, 

liberty, or property protected by the Due Process Clause of the 

Fourteenth Amendment, a State must provide ‘notice reasonably 

calculated, under all circumstances, to apprise interested parties of 

the pendency of the action and afford them an opportunity to present 

their objections.’” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 

795 (1983) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 

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U.S. 306, 314 (1950)). “A primary purpose of the notice required by 

the Due Process Clause is to ensure that the opportunity for a hearing 

is meaningful.” City of W. Covina v. Perkins, 525 U.S. 234, 240 

(1999) (citing Mullane, 339 U.S. at 314). Plaintiff’s challenge to 

the notice provided by OPERS is two-fold: plaintiff argues that he did 

not receive adequate notice that his disability benefits would be 

terminated, and he argues that OPERS was required to provide notice of 

an available state remedy to challenge the termination. 

 The parties agree that OPERS notified plaintiff by telephone on 

March 20, 2012, that his disability benefits would be terminated 

effective April 30, 2012, because of his election to and service for 

the New Richmond Village Council. Amended Complaint, ¶ 26; Amended 

Answer, ¶ 26; Administrative Record, PAGEID 272-73; Affidavit of 

Richard Mathews, ¶ 15. An OPERS representative spoke with plaintiff 

or plaintiff’s counsel on the telephone at least six times between 

March 21 and April 30, 2012, regarding the termination of plaintiff’s 

disability benefits. Affidavit of Jeremy Polley, ¶ 9; Affidavit of 

Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G. Plaintiff was 

informed that his disability benefits would be terminated on a 

particular date and he was informed of the reason why his benefits 

would be terminated. See Affidavit of Jeremy Polley, ¶ 9; Affidavit 

of Allen Foster, ECF 32-1, ¶¶ 3, 9, Exhibits A, G; Amended Complaint, 

¶ 26. Under the circumstances of this case, the Court concludes that 

the oral notice provided by OPERS complied with the requirements of 

due process. 

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 As to plaintiff’s complaint that defendant’s communications 

failed to provide adequate notice of an opportunity to be heard, the 

Court concludes that OPERS was not required to provide notice of the 

availability of a mandamus action as a vehicle for challenging the 

termination of plaintiff’s disability benefits. In City of W. Covina 

v. Perkins, 525 U.S. 234 (1999), West Covina police officers, acting 

pursuant to a valid state court search warrant, seized personal 

property from the home of Lawrence Perkins. The property belonged, 

not to the suspected criminal who was a boarder in the home, but to 

Perkins and his family. The officers left an itemized list of the 

property seized and notice that further information could be obtained 

from any of the specified officers. When Perkins called one of the 

listed officers and asked about the return of the seized property, the 

officer informed him that the property could be returned only upon 

court order. After attempting, unsuccessfully, to obtain such an 

order, the Perkins family filed suit in federal court alleging that 

their due process rights had been violated because the officers did 

not adequately notify them of the specific procedures necessary for 

the return of their seized property. 

 The Court of Appeals for the Ninth Circuit, relying on Memphis 

Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978), held that the 

city was constitutionally required to provide specific notice of the 

particular state procedures to be followed by persons seeking the 

return of seized property as well as sufficient information to permit 

those persons to properly invoke those procedures. The United States 

Supreme Court reversed that decision: 

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Individualized notice that the officers have taken the 

property is necessary in a case such as the one before us 

because the property owner would have no other reasonable 

means of ascertaining who was responsible for his loss. 

No similar rationale justifies requiring individualized 

notice of state-law remedies which, like those at issue 

here, are established by published, generally available 

state statutes and case law. Once the property owner is 

informed that his property has been seized, he can turn to 

these public sources to learn about the remedial procedures 

available to him. The City need not take other steps to 

inform him of his options. 

City of W. Covina, 525 U.S. at 241 (citing Atkins v. Parker, 472 U.S. 

115 (1985); Reetz v. Michigan, 188 U.S. 505, 509 (1903)). The Supreme 

Court also distinguished its holding in Memphis Light: 

In requiring notice of the administrative procedures, 

however, we relied not on any general principle that the 

government must provide notice of the procedures for 

protecting one's property interests but on the fact that 

the administrative procedures at issue were not described 

in any publicly available document. A customer who was 

informed that the utility planned to terminate his service 

could not reasonably be expected to educate himself about 

the procedures available to protect his interests[.] 

Id. at 241-42. The Supreme Court therefore concluded that “[w]hile 

Memphis Light demonstrates that notice of the procedures for 

protecting one's property interests may be required when those 

procedures are arcane and are not set forth in documents accessible to 

the public, it does not support a general rule that notice of remedies 

and procedures is required.” Id. at 242. 

 Here, the right to file a mandamus action is grounded in a state 

statute, O.R.C. § 2731.01, and is well established in case law. See, 

e.g., State ex rel. Cydrus, 127 Ohio St. 3d at 260-61; State ex rel. 

Lowe, 2014 WL 5460448. OPERS was therefore not required to provide 

individualized notice of the availability of a mandamus action 

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because, once plaintiff was informed that his disability benefits 

would be terminated, he could turn to the state statute and case law 

to learn about and pursue the remedial procedures available to him. 

See City of W. Covina, 525 U.S. at 241. OPERS therefore was not 

constitutionally required to provide written notice of the 

availability of a mandamus action. 

 In short, the Court concludes that the process afforded plaintiff 

was adequate under the circumstances to protect plaintiff’s property 

interest in his disability benefits. Defendant is therefore entitled 

to summary judgment on plaintiff’s as-applied procedural due process 

claim. 

 Plaintiff also alleges that O.R.C. § 145.362 is unconstitutional 

on its face. Plaintiff specifically argues that O.R.C. § 145.362 is 

unconstitutional because the statute does not expressly provide “any 

legally sufficient Due Process protections.” Plaintiff’s Supplemental 

Brief, p. 1. Defendant reasserts the arguments made in opposition to 

plaintiff’s as-applied challenge and argues, further, that plaintiff 

lacks standing to assert a facial challenge to O.R.C. § 145.362, that 

plaintiff’s facial challenge is not ripe for resolution, and that 

plaintiff’s challenge is in any event moot. Defendant’s Motion, 

PAGEID 818-19; Defendant’s Supplemental Brief, PAGEID 1061-62. 

 As discussed supra, a plaintiff can succeed in a facial challenge 

only by “establish[ing] that no set of circumstances exists under 

which the Act would be valid,” i.e., that the law is unconstitutional 

in all its applications. Salerno, 481 U.S. at 745. See also Wash. 

State Grange, 552 U.S. at 449. Because O.R.C. § 145.362 is not 

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unconstitutional as applied to plaintiff, it cannot be said that the 

law is facially unconstitutional. Defendant is therefore entitled to 

summary judgment on plaintiff’s facial challenge to O.R.C. § 145.362. 

See Women's Med. Prof'l Corp., 130 F.3d at 193-94 (“[A] facial 

challenge to a statute should fail if the statute has a constitutional 

application.”). 

 Defendant also seeks summary judgment on its counterclaim for 

recovery of allegedly overpaid benefits and for declaratory judgment. 

Defendant specifically alleges that plaintiff improperly received 

$106,672.54 in disability benefits since January 1, 2010, when 

plaintiff took office as a Council Person for the Village of New 

Richmond, Ohio. Amended Answer, PAGEID 1028-1030. According to 

defendant, plaintiff’s disability benefits terminated as a matter of 

law on January 1, 2010, pursuant to O.R.C. § 145.362, and O.R.C. § 

145.563 requires that plaintiff repay the benefits received by him 

after that date. Amended Answer, PAGEID 1028-1030. Defendant 

therefore seeks $106,672.54 for the overpayment of benefits and a 

declaratory judgment that O.R.C. § 145.563 permits defendant to “setoff the overpayment and reduce Mathews’ monthly retirement benefit, up 

to and including the full amount of the monthly benefit, until the 

entire overpayment amount of $106,672.54 has been recouped.” Id. 

 Plaintiff argues that “OPERS is not entitled to summary judgment 

in its favor as genuine issues of material fact exists [sic] as to 

when Mathews’ benefits should have been terminated, if at all.” 

Plaintiff’s Response, PAGEID 938. Observing that he notified OPERS in 

March 2010, 2011, and 2012 that he had become an elected official and 

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that OPERS nevertheless continued to pay benefits until April 2012, 

id. at PAGEID 939, plaintiff characterizes the continued payment of 

benefits after that notice as a ratification by OPERS of plaintiff’s 

entitlement to disability benefits. Under these circumstances, 

plaintiff argues, OPERS is now estopped from recouping the alleged 

overpayments. Id. 

 Section 145.362 of the Ohio Revised Code provides: “If a 

disability benefit recipient is restored to service by, or elected to 

an elective office with, an employer covered by [OPERS], the 

recipient's disability benefit shall cease.” Section 145.563 provides 

that, “[i]f any person . . . is paid any benefit or payment by the 

public employees retirement system, including any payment made to a 

third party on the person's behalf, to which the person is not 

entitled, the benefit or payment shall be repaid to the retirement 

system by the person or third party.” O.R.C. § 145.563. “If the 

person or third party fails to make the repayment, the retirement 

system shall withhold the amount or a portion of the amount due from 

any benefit or payment due the person or the person's beneficiary 

under this chapter, or may collect the amount in any other manner 

provided by law.” Id. 

 As discussed supra, plaintiff assumed office as an elective 

official with an employer covered by OPERS on January 1, 2010. 

Although plaintiff disagrees that O.R.C. § 145.362 requires the 

termination of an individual’s disability benefits at the time he 

takes office as an elected official with an employer covered by OPERS, 

plaintiff has not offered any alternative interpretation of O.R.C. § 

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145.362. Instead, plaintiff appears to argue that OPERS is now 

estopped from enforcing O.R.C. § 145.362 because OPERS continued to 

pay disability benefits to plaintiff until April 30, 2012. 

Plaintiff’s Response, PAGEID 938-939. 

 Defendant does not dispute that plaintiff reported to OPERS in 

March 2011 and 2012 that he earned income as an elected official for 

the Village of New Richmond, Amended Complaint, ¶¶ 23-24; Amended 

Answer, ¶¶ 23-24; Administrative Record, PAGEID 413-16; Affidavit of 

Richard Mathews, ¶ 9, or that OPERS continued to pay plaintiff 

disability benefits until April 30, 2012, despite those reports. 

Defendant insists, however, that those facts do not give rise to an 

estoppel. This Court agrees. 

 “The purpose of equitable estoppel is to prevent actual or 

constructive fraud and to promote the ends of justice. It is 

available only in defense of a legal or equitable right or claim made 

in good faith and should not be used to uphold crime, fraud, or 

injustice.” Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St. 3d 143, 

145 (1990) (citing Heckler v. Cmty. Health Servs. of Crawford Cnty. 

Inc., 467 U.S. 51, 59 (1984); Lex Mayers Chevrolet Co. v. Buckeye 

Finance Co., 153 N.E.2d 454, 456 (Ohio Ct. App. 1958)). “The party 

claiming the estoppel must have relied on conduct of an adversary in 

such a manner as to change his position for the worse and that 

reliance must have been reasonable in that the party claiming estoppel 

did not know and could not have known that its adversary's conduct was 

misleading.” Id. (citing Heckler, 467 U.S. at 59). “It is wellsettled that, as a general rule, the principle of estoppel does not 

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apply against a state or its agencies in the exercise of a 

governmental function.” Id. (citing Sekerak v. Fairhill Mental Health 

Ctr., 25 Ohio St. 3d 38, 39 (1986); Besl Corp. v. Pub. Util. Comm., 45 

Ohio St. 2d 146, 150 (1976)). 

 Plaintiff recognizes the general rule that “the principle of 

estoppel does not apply against a state or its agencies in the 

exercise of a governmental function,” but he argues that the general 

rule does not apply in this case because the plaintiff in Frantz did 

not assert a claim for procedural due process. Plaintiff’s 

Supplemental Brief, PAGEID 1040. Plaintiff’s argument is not well 

taken. Notably, plaintiff has offered no support for his suggestion 

that the general rule does not apply in this case. Indeed, this Court 

has previously held that OPERS is not subject to an estoppel defense, 

particularly where, as here, OPERS made no representation that induced 

the plaintiff to take action. Evans v. Ohio Pub. Emp. Ret. Sys., No. 

2:07-CV-1061, 2008 WL 4849119, at *6 (S.D. Ohio Nov. 6, 2008). Here, 

plaintiff has offered no evidence that he reasonably relied to his 

detriment on OPERS’ actions, inactions, or representations. Plaintiff 

argues that “the amount of time which passed from the date Mathews 

first advised OPERS (by letter dated March[] 29, 2010) and the date 

OPERS unilaterally terminated Plaintiff’s disability retirement 

benefits (April 30, 2012; more than 750 days), is a relevant, 

determinative and controlling fact.” Plaintiff’s Supplemental Brief, 

PAGEID 1041. However, plaintiff’s entitlement to disability benefits 

terminated as a matter of law on January 1, 2010, when he became an 

elected official for the Village of New Richmond. Plaintiff’s 

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reliance on any alleged action or inaction by OPERS after January 1, 

2010, could not have induced him to become an elected official on that 

date. It follows, then, that plaintiff’s estoppel defense must fail. 

 Defendant has presented uncontested evidence that plaintiff 

received $106,672.54 in disability benefits from OPERS between January 

2010, when plaintiff’s entitlement to disability benefits ceased as a 

matter of law, and April 2012, when OPERS stopped paying disability 

benefits to plaintiff. Affidavit of Jeremy Polley, ¶ 12. Because 

plaintiff’s entitlement to benefits ceased on January 1, 2010, he 

must, as required by O.R.C. § 145.563, repay to OPERS the disability 

benefits paid to him after that date. Defendant is therefore entitled 

to summary judgment on its counterclaim for the overpayment of 

benefits. 

WHEREUPON, based on the foregoing, Plaintiff’s Motion, ECF 26, is 

DENIED to the extent that the motion seeks summary judgment on 

plaintiff’s claims. Defendant’s Motion, ECF 32, is GRANTED. 

Defendant is granted judgment on plaintiff’s claims and on its 

counterclaim. The Court AWARDS defendant $106,672.54 pursuant to 

O.R.C. § 145.563 for the overpayment of disability benefits paid to 

plaintiff between January 2010 and April 2012, and may collect that 

amount in accordance with the procedures established in O.R.C. § 

145.563(B). 

 The Clerk is DIRECTED to enter FINAL JUDGMENT accordingly. 

March 12, 2015 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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